“Dowd’s argument is the last refuge of a scoundrel, and it would lead us down a path to despotism.”
President Donald Trump approaches members of the media to speak on former national security adviser Michael Flynn’s lying to the FBI prior to his Marine One departure from the South Lawn of the White House December 4, 2017, in Washington, DC. Alex Wong/Getty Images
President Trump’s lawyer, John Dowd, apparently believes the president cannot be guilty of obstruction of justice because he’s the president.
The “president cannot obstruct justice because he is the chief law enforcement officer [under the Constitution’s Article II] and has every right to express his view of any case,” Dowd told Axios’s Mike Allen.
But is that true? To find out, I reached out to 13 legal experts and asked them a single question: Can the president commit obstruction of justice?
Their full responses, edited for clarity and style, are below.
Asha Rangappa, former FBI agent and senior lecturer, Yale University
The days of crazy King George III ended with the Battle of Yorktown in 1781. We now have a nation of laws, not men. While the president is the head of the executive branch, there are provisions in the Constitution that constrain the president’s ability to interfere with investigations or shut them down (or start them) at will.
For one thing, Article II, which outlines the president’s powers, requires that he “take Care that the Laws be faithfully executed.” This means that his official actions taken with regard to the administration of justice must be made in good faith. In addition, the Fifth and 14th Amendments require that he ensure that all persons enjoy “equal protection of the laws.”
In short, the president is not above the law, and can indeed be guilty of obstructing justice.
Renato Mariotti, former federal prosecutor, 2007 to 2016
Just because the president has the power to do something doesn’t necessarily mean it’s lawful for him to do so. The president can’t fire someone in exchange for a bribe, for example. The president also can’t fire someone based on their race or religion.
In the same way, if the president fires the FBI director or anyone else for a corrupt purpose — such as trying to end an investigation into him or his friends — that’s a crime. The mere fact that he has the power to do that doesn’t make it legal.
This question is extremely important. If the president can fire anyone who investigates him, he is above the law.
Jens David Ohlin, law professor, Cornell University
The president, just like any other member of the public, is subject to the rule of law. If the president could interfere with an investigation into his own criminal behavior, or those of his associates, then the president would be utterly above the law.
That being said, the president does have the authority to fire executive officials that serve at the pleasure of the president. But if he exercises that authority corruptly, he faces impeachment and removal for obstruction of justice. [Richard] Nixon resigned on the eve of a similar situation. If [Gerald] Ford had not pardoned his predecessor, Nixon would have been prosecuted and convicted for obstruction of justice. So even recent history suggests that Trump’s lawyers are wrong when they argue that he has carte blanche to obstruct justice.
Peter Shane, law professor, Ohio State University
It’s nonsense. A president’s constitutional role does not include a prerogative to act corruptly. A president who “corruptly” obstructs or impedes “the due and proper administration of the law” commits a crime. It is worth noting that — although impeachment proceedings are civil, not criminal in nature — articles of impeachment voted against both Nixon and [Bill] Clinton charged obstruction of justice as a violation of the president’s constitutional obligation to take care that laws are faithfully executed.
Lisa Kern Griffin, law professor, Duke University
A president can be guilty of obstruction of justice — look no further than the articles of impeachment against both Nixon and Clinton. There is, of course, a question about whether the sitting president can be criminally indicted, but that is a separate constitutional issue.
That the president has the power to do something does not inherently render it lawful, if he does it for an improper purpose. Imagine that you have a box full of documents that belong to you. You would ordinarily be within your rights to shred those documents if you choose to do so — shredding them alone is not a crime. But if you exercise your control over your own records in order to impede a criminal investigation, now it may be unlawful obstruction.
The president is the head of the executive branch, but he is not above the law. If he had a corrupt motive — political or personal — when he interfered with the investigation, then his intervention constitutes obstruction.
Andy Wright, law professor, Savannah Law School
Of course the president can obstruct justice. From Marbury v. Madison to US v. Nixon, the Supreme Court has affirmed we are a nation of laws and not of men, and that the president is subject to law. The Supreme Court held that Nixon had to comply with a subpoena sought by a subordinate official in a criminal case. Both Nixon and Clinton were impeached on obstruction of justice theories.
As a White House lawyer under two presidents, I can tell you that Counsel’s Office operates on the assumption that the president could obstruct justice. The president’s role as chief executive may complicate what motivations are “corrupt” for an obstruction of justice statute. But Dowd’s argument is the last refuge of a scoundrel, and it would lead us down a path to despotism.
Bob Bauer, law professor, New York University
The Constitution does not grant the president immunity from prosecution for the commission of felonies. But some wish the Constitution to be read that way to assure that an executive is not rendered unable to perform the duties of his office, and they argue that as chief law enforcement officer he cannot prosecute himself and that impeachment is the sole remedy for felonious conduct.
Jimmy Gurulé, law professor, Notre Dame
This must come as shocking news to former President Bill Clinton. The House of Representatives approved two articles of impeachment against President Clinton, charging him with lying under oath to a federal grand jury and obstructing justice.
Trump’s lawyers need to be reminded that a fundamental tenet of American democracy is that “no one is above the law,” including the president of the United States. The US Constitution does not afford President Trump unfettered authority to remove the director of the FBI, including for the purpose of protecting the president himself, his family, and his associates from criminal prosecution. While it may be an inconvenient truth for President Trump, he is bound by the rule of law.
Ric Simmons, law professor, Ohio State University
It is not clear what John Dowd meant by this statement. If he literally meant that a president cannot ever be guilty of obstruction of justice, he is completely wrong. A president can commit obstruction of justice by hiding or destroying documents, or impeding an investigation, or in any number of ways.
However, if Dowd meant that the president is not guilty of obstruction of justice for this particular action (the firing of James Comey when he knew Flynn had lied to the FBI), then he is correct — the president is not obstructing justice when he fires someone he is legally entitled to fire. This may be what Dowd meant when he said that “as the chief law enforcement officer,” Trump cannot obstruct justice. So Dowd was correct in this case, but he overstated his argument quite dramatically.
Miriam Baer, law professor, Brooklyn Law School
One can interpret Dowd’s claim broadly or narrowly. The broader claim is that the president is structurally unable to violate the obstruction laws because of his powers under Article II of the Constitution. Such a claim would effectively place the president above the laws of the land and is so unsettling as to be implausible.
The narrower version is that the president may voice his views on individual prosecutions, which is of course correct in the sense that the omnibus obstruction statute prohibits someone from “corruptly” impeding or endeavoring to influence the due administration of justice. The statute doesn’t punish all attempts to influence decisions made by the Department of Justice or FBI.
Thus, the key question may be: What is the meaning of the word “corruptly,” and does Mr. Trump’s behavior prove that he was in fact acting “corruptly” when he sought to influence the Flynn investigation?
Victoria Nourse, law professor, Georgetown University
Although this argument seems curious, it should not. The “imperial presidency” is something conservative scholars have touted for years. Since the 1980s, conservative scholars who call themselves originalists have pushed the argument for a “unitary executive,” meaning that the president has all power over his subordinates. But this is not in the text of the Constitution.
Originalists have been playing fast and loose with the text for some time, using it as a means to upset longstanding traditions. Originalists will defend themselves, claiming that the only remedy for a president who breaks the law is impeachment; but the Constitution does not say that impeachment is an exclusive remedy for criminal behavior.
The bottom line: The Supreme Court has held what every American citizen believes — that the president is not above the law.
Jed Shugerman, law professor, Fordham University
John Dowd is right that the president is the chief law enforcement officer, but that does not mean he is above the law. This theory is not new. Nixon said, “When the president does it, that means it is not illegal.” This theory was rejected then, especially when the House Judiciary Committee listed obstruction of justice at the top of its articles of impeachment.
The Republicans rejected Nixon’s theory again during the Clinton impeachment. Just because the president has a power, that does not mean the president can use that power any way he wants to. The president has a constitutional power to fire and to nominate officers, but if the president received a payment to fire Comey, quid pro quo, or to give his job to Christopher Wray, that would be felony bribery.
The president as commander-in-chief has the power to order military strikes, but if his intent was to kill his wife’s lover in a strike, that would be murder. And if the president interferes or impedes an FBI investigation with “corrupt intent,” that’s obstruction of justice under 18 USC 1512(c)(2). Trump has essentially confessed three times to his corrupt intent in firing Comey: on May 10 in the Oval Office, on May 11 to NBC’s Lester Holt, and then in his tweet on Saturday (awareness that Flynn had committed a crime).
Jessica Levinson, law professor, Loyola Law School
I understand that this is an argument that a lawyer for the president would make when the president is being investigated for obstruction of justice. However, the argument likely does not hold water. It is frankly more of a leaky ship. The president is treated as different from other constitutional officers, and he is the chief law enforcement officer, and he does have the right to express his views on cases, but (and this is a big but) that does not mean he is legally incapable of obstructing justice.
I believe the better view, supported by a reading of the Constitution, is that the president cannot say to a prosecutor, “I know person A lied to you, which is a felony, but you should drop the investigation against person A.” Those who drew up articles of impeachment against former Presidents Richard Nixon and Bill Clinton clearly thought the president could be guilty of obstruction of justice because that charge was included against both of them.
Dec 4, 2017, 11:50am EST